SFPD blamed for trial issues

Failure to provide evidence cited

Acouple of big criminal cases in Santa Fe have been affected in the past month because the Santa Fe Police Department reportedly did not give key evidence to prosecutors in time for important court hearings.

Police and prosecutors are now giving inconsistent statements about evidence that may or may not have been provided.

One of the cases ended with charges being dropped and the other had to have its trial postponed, even though a jury already had been picked.

Benjamin Maes, 27, was supposed to stand trial Wednesday in Santa Fe District Court. But the trial was postponed because SFPD did not provide thumb drives and CDs that contained

“substantive pieces of evidence” until last week, according to a prosecution motion filed in Santa Fe District Court last week. A jury for the case had been selected Oct. 24.

Maes is accused of beating his girlfriend’s 2-year-old boy in September 2015 so badly that the boy had to be flown to University of New Mexico Hospital in Albuquerque and was left partially paralyzed. Maes is currently out of jail on a $25,000 bond, according to court records. New jury selection is now scheduled for mid-February.

And last month, felony battery on a peace officer charges were dropped against Fiestas de Santa Fe Entrada protester Jennifer Marley because, according to District Attorney Marco Serna, prosecutors didn’t get lapel videos and officer statements in time for her preliminary hearing in Magistrate Court Oct. 11. At the hearing, prosecutors would have had to convince a judge that there was enough evidence to proceed to trial.

But now, SFPD is saying that it did in fact deliver video discovery to the District Attorney’s Office about a week before Marley’s hearing. Chief Patrick Gallagher had said in October that he wasn’t sure why video wasn’t sent to the DA and that he was going to look into it.

A deputy district attorney still says that no “discovery,” or evidence, was provided in time for Marley’s preliminary hearing.

Maes case

In the Maes case, Deputy District Attorney Susan Stinson wrote in an expedited motion to postpone the trial filed last week, on Halloween, that prosecutors believed they had received all discovery from the police department last year.

But after some lastminute pretrial interviews by the defense, she “had a concern that there was additional discovery that had not been provided to the District Attorney’s Office, despite our prior request” in March 2016.

The DA’s Office asked the police again about “possible missing audio/ video” and was notified after 5 p.m. Oct. 30 — eight days before the trial was to start — that there was additional evidence.

Stinson wrote that two thumb drives and four CDs were handed to the DA’s Office at 10:50 a.m. Oct. 31, the same day she filed the motion to postpone the trial. Stinson wrote that three pieces of the evidence were “located on devices other than the central evidence system at SFPD.”

“The State realizes that a motion for continuance is very late in this case, and we also realize that a jury has been selected. …” Stinson wrote. “As a result, the State is fully aware of the difficulty this presents the Court. However, too much total information has been received by both parties in just the last one and one-half weeks for us to proceed to trial without additional time to adequately prepare.”

Judge T. Glenn Ellington granted a continuance, according to court records. A new jury is scheduled to be selected Feb. 13.

SFPD spokesman Greg Gurule said in an email that the department has no record of the March 2016 discovery request mentioned by Stinson. “I’m not saying one doesn’t exist or was sent, we just don’t have a copy of it as proof it was received … and we keep extensive records,” Gurule said.

Gurule, in contrast to Stinson’s description of the late evidence as CDs and thumb drives, said the newly uncovered evidence is an old report, a Word document from two years ago that had been found by an officer reviewing documents.

Gurule added that the discovery requests go through a single employee at the department. SFPD has an “acting” person in that role right now after the previous employee left in March, but Gurule said someone has been hired to fill the position permanently and is currently in training.

Hans Erickson, Maes’ attorney, said he opposed Stinson’s motion to postpone the trial because the case had been pending for some time and he said his client is ready to “clear his name.” He also said having to pick a new jury put a burden on all his other cases and the wouldbe jurors who had been picked.

“It’s an inconvenience for the defendant and the defense attorney because we spend a lot of time reviewing jury questionnaires,” Erickson said. “We spent pretty much all day doing jury selection itself, so that’s something that has to be done over. Mr. Maes doesn’t have to pay me for the time, but I have other clients. But the biggest inconvenience is the time the jury spent to be there.”

Marley case

Gurule also said in an email Thursday that video in the high-profile Jennifer Marley case was sent to Deputy District Attorney John Rysanek on Oct. 3, even though Chief Gallagher told the Journal Oct. 11 that he was going to find out why video was never shared with prosecutors.

“Records show our discovery person send (sic) the requested material which consisted of video material (there were no written reports in the system at that time) to John Rysenik (sic) (Oct. 3),” Gurule wrote. “You’ll have to contact Mr. Rysenik (sic) to determine what happened to that material. …”

Prosecutor Rysanek said Thursday that he didn’t have any discovery from the SFPD for Marley, a member of the Red Nation group, by Oct. 10 so he had to drop her charges. She was accused of hitting officers with a protest sign during the September Entrada, the annual Plaza re-enactment of the Spanish reoccupation of Santa Fe 12 years after the Pueblo Revolt of 1680.

“That’s categorically not true,” Rysanek said about Gurule’s statement that records had been sent earlier. “None of that was here Oct. 10 when I dismissed the case. If something came in, it would be recorded. There’s nothing in here with an entry in early October for Jennifer Marley.”

Rysanek said he only got a full discovery packet from police Oct. 16. And he said he still needs one more police video before determining whether Marley’s charges should be refiled.

Both the DA’s office and SFPD say records foul-ups are rare occurrences and that the two departments are working well together.

“You have to understand, we deal with thousands of cases from the Santa Fe Police Department alone,” District Attorney Serna said this week. “We’re human and things fall through the cracks. These are a few cases out of a couple of thousand where we haven’t seen anything. … We don’t have constant issues where we’re not receiving discovery and have to ask for it several times. We have our systems in place and they’re working well.”